Obesity remains a serious health problem and it is no secret that many people want to lose weight. Behavioral economists typically argue that “nudges” help individuals with various decisionmaking flaws to live longer, healthier, and better lives. In an article in the new issue of Regulation, Michael L. Marlow discusses how nudging by government differs from nudging by markets, and explains why market nudging is the more promising avenue for helping citizens to lose weight.

Armed with a computer model in 1935, one could probably have written the exact same story on California drought as appears today in the Washington Post some 80 years ago, prompted by the very similar outlier temperatures of 1934 and 2014.

Two long wars, chronic deficits, the financial crisis, the costly drug war, the growth of executive power under Presidents Bush and Obama, and the revelations about NSA abuses, have given rise to a growing libertarian movement in our country – with a greater focus on individual liberty and less government power. David Boaz’s newly released The Libertarian Mind is a comprehensive guide to the history, philosophy, and growth of the libertarian movement, with incisive analyses of today’s most pressing issues and policies.

True or false: The new health care law will cut Medicare benefits for seniors. It will slash Medicare payments to doctors. It will ration health care.

In three polls conducted last month, large percentages of Americans answered “true” to each statement. All three are false.

In fact, two of the three statements are 100-percent true.

First, ObamaCare will cut payments to the private health insurance companies that provide coverage to the 20 percent of Medicare enrollees who participate in the Medicare Advantage program. That will eliminate many types of coverage for seniors in Medicare Advantage. That should be painfully obvious, but if you require confirmation, visit FactCheck.org. ObamaCare will also ratchet down the price controls that Medicare uses to pay hospitals and many other health care providers. It should likewise be obvious that that will reduce access to services that are ostensibly “guaranteed” to all enrollees. But again, if you need confirmation, check in with Medicare’s chief actuary, who works for President Obama. We can debate whether that’s good or bad. What’s not up for debate: ObamaCare in fact “will cut Medicare benefits for seniors.”

Second, it is also true – ipso facto – that ObamaCare “will ration health care.” To ration is to limit consumption. When ObamaCare reduces coverage for Medicare Advantage enrollees and reduces access to care for all Medicare enrollees, it limits seniors’ consumption of medical care. We can debate whether that’s good or bad. What’s not up for debate: that is rationing.

Finally, yes, it is technically false that ObamaCare “will slash Medicare payments to doctors.” But since current law will slash Medicare payments to doctors if Congress does nothing, and since an earlier version of ObamaCare would have eliminated those cuts, but ObamaCare’s architects dropped that provision so as to make ObamaCare appear deficit-neutral… well, perhaps the public can be forgiven if it confuses “eliminating a provision that would have prevented cuts in Medicare payments to doctors” with “slashing Medicare payments to doctors.”

USA Today continues:

The debunked idea raised by opponents during congressional debate that “death panels” could make end-of-life decisions is seen as real by nearly half of those surveyed.

Second, by rationing Medicare enrollees’ access to medical services (see above), ObamaCare will effectively make end-of-life decisions for seniors. According to Medicare’s chief actuary, ObamaCare could force one in six hospitals to stop accepting Medicare patients. If ObamaCare results in there no longer being a hospital bed waiting for Grandma at the end of her life, that’s an end-of-life decision. It wasn’t a personalized decision. It’s not even necessarily the wrong decision. But let’s drop this nonsense about ObamaCare not making end-of-life decisions for seniors. And ObamaCare did create a panel that will make many of these implicit rationing decisions. It’s called the Independent Payment Advisory Board.

But my guess is that people tell pollsters that ObamaCare will make end-of-life decisions because they understand the Golden Rule, and that he who pays the piper calls the tune. So long as the government purchases medical care, it will be the government that decides who receives it and who doesn’t. And ObamaCare gave government a lot more of the gold.

USA Today packed a lot of misinformation into this one sentence:

The National Council on Aging posed 12 questions about the law to 636 seniors and found that fewer than 17% of them knew half the answers.

“The new law will result in future cuts to your basic Medicare benefits.” A plurality of seniors (42 percent) responded “true.” And they’re right: as Medicare’s chief actuary has explained and as NCOA should know, ObamaCare will reduce access to care for Medicare enrollees. That’s a benefit cut, unless you think “coverage without care” counts as a benefit. Yet according to NCOA, the correct answer is “false.” Just 22 percent of seniors agreed.

“Under the new health reform law, Medicare Advantage plans will cut benefits and increase premiums.” NCOA says the correct response is “don’t know,” and that’s the answer that 56 percent of seniors gave. Perhaps seniors haven’t read the chief Medicare actuary’s report, which found that ObamaCare “will result in less generous benefits packages” in Medicare Advantage and “when the MA provisions will be fully phased in, enrollment in MA plans will be lower by about 50 percent.” But NCOA should have read that report, and should therefore know that the correct answer is “true.”

“The new law is projected to increase the federal budget deficit over the next ten years and beyond.” Again, a plurality (49 percent) responded “true.” Again, they’re right. Yet NCOA thinks the correct response is “false.” No doubt NCOA would point to the Congressional Budget Office projections that ObamaCare will reduce the deficit. But those projections are valid only if ObamaCare “remain[s] unchanged throughout the next two decades, which is often not the case for major legislation.” The CBO wrote this would particularly be a problem with ObamaCare, which “would maintain and put into effect a number of policies that might be difficult to sustain over a long period of time.” So one could reasonably interpret the CBO to have projected an increase, not a decrease in the deficit. Alternatively, seniors could have been thinking about former CBO director Douglas Holtz-Eakin, who projected in The New York Times that ObamaCare “would raise, not lower, federal deficits, by $562 billion.” There are lots of reasons why “true” is in fact the correct answer. (One of them is that NCOA used the passive construction “is projected.”) Only 14 percent of seniors agreed with NCOA.

“As a result of the new law, the solvency of the Medicare Trust Fund will be extended by about 9 years to 2026.” A majority of seniors responded “don’t know” (54 percent), while another 22 percent responded “false.” Either answer is more correct than NCOA’s preferred answer (“true”). There are no assets in the Medicare “trust fund.” Thus there is no date by which those non-assets will be exhausted. Indeed, the “trust fund” has absolutely no effect on Medicare’s solvency. The very premise of this question is a fraud. Someone needs to educate seniors about the Medicare trust fund, but NCOA is not the group to do it.

“The health care reform law will cut Medicare payments to doctors.” A plurality of seniors responded “true” (45 percent), while only 14 percent of seniors gave NCOA’s preferred response (“false”). But again, perhaps seniors can be forgiven on this one (see above).

USA Today should have dug a little deeper.

More misinformation:

More than four in 10 people in the Kaiser poll wrongly believe the law included a government panel to make end-of-life decisions for Medicare patients.

Again, ObamaCare does include a panel that would implicit rationing decisions, including for Medicare patients at the end of life (see above).

More misinformation still:

As the Department of Health and Human Services issues the regulations needed to implement the law, it’s trying to get the facts out through its website, healthcare.gov. The Centers for Medicare and Medicaid Services is helping, most recently with a cable TV ad featuring Andy Griffith.

FactCheck.org found that Andy Griffith used “weasel words” to “mislead” seniors about ObamaCare. How is USA Today not aware of that?

Peter Wallsten of the Wall Street Journalwrites, “Libertarianism is enjoying a recent renaissance in the Republican Party.” He cites Ron Paul’s winning the presidential straw poll earlier this year at the Conservative Political Action Conference, Rand Paul’s upset victory in the Kentucky senatorial primary, and former governor Gary Johnson’s evident interest in a libertarian-leaning presidential campaign. Johnson tells Wallsten in an interview that he’ll campaign on spending cuts – including military spending, on entitlements reform, and on a rational approach to drug policy.

Meanwhile, on the same day, Rand Paul had a major op-ed in USA Today discussing whether he’s a libertarian. Not quite, he says. But sort of:

In my mind, the word “libertarian” has become an emotionally charged, and often misunderstood, word in our current political climate. But, I would argue very strongly that the vast coalition of Americans — including independents, moderates, Republicans, conservatives and “Tea Party” activists — share many libertarian points of view, as do I.

I choose to use a different phrase to describe my beliefs — I consider myself a constitutional conservative, which I take to mean a conservative who actually believes in smaller government and more individual freedom. The libertarian principles of limited government, self-reliance and respect for the Constitution are embedded within my constitutional conservatism, and in the views of countless Americans from across the political spectrum.

Our Founding Fathers were clearly libertarians, and constructed a Republic with strict limits on government power designed to protect the rights and freedom of the citizens above all else.

And he appeals to the authority of Ronald Reagan:

Liberty is our heritage; it’s the thing constitutional conservatives like myself wish to preserve, which is why Ronald Reagan declared in 1975, “I believe the very heart and soul of conservatism is libertarianism.”

Reagan said that several times, including in a Reason magazine interview and in a 1975 speech at Vanderbilt University that I attended. A lot of libertarians complained that he should stop confusing libertarianism and conservatism. And once he began his presidential campaign that fall, he doesn’t seem to have used the term any more.

You can see in both the Paul op-ed and the Johnson interview that major-party politicians are nervous about being tagged with a label that seems to imply a rigorous and radical platform covering a wide range of issues. But if you can call yourself a conservative without necessarily endorsing everything that William F. Buckley Jr. and the Heritage Foundation – or Jerry Falwell and Mike Huckabee – believe, then a politician should be able to be a moderate libertarian or a libertarian-leaning candidate. I wrote a book outlining the full libertarian perspective. But I’ve also coauthored studies on libertarian voters, in which I assume that you’re a libertarian voter if you favor free enterprise and social tolerance, even if you don’t embrace the full libertarian philosophy. At any rate, it’s good to see major officials, candidates, and newspapers talking about libertarian ideas and their relevance to our current problems.

The Electronic Frontier Foundation trumpets a surprising privacy win last week in the U.S. Court of Appeals for the D.C. Circuit. In U.S. v. Maynard (PDF), the court held that the use of a GPS tracking device to monitor the public movements of a vehicle—something the Supreme Court had held not to constitute a Fourth Amendment search in U.S. v Knotts—could nevertheless become a search when conducted over an extended period. The Court in Knotts had considered only tracking that encompassed a single journey on a particular day, reasoning that the target of surveillance could have no “reasonable expectation of privacy” in the fact of a trip that any member of the public might easily observe. But the Knotts Court explicitly reserved judgment on potential uses of the technology with broader scope, recognizing that “dragnet” tracking that subjected large numbers of people to “continuous 24-hour surveillance.” Here, the DC court determined that continuous tracking for a period of over a month did violate a reasonable expectation of privacy—and therefore constituted a Fourth Amendment search requiring a judicial warrant—because such intensive secretive tracking by means of public observation is so costly and risky that no reasonable person expects to be subject to such comprehensive surveillance.

Perhaps ironically, the court’s logic here rests on the so-called “mosaic theory” of privacy, which the government has relied on when resisting Freedom of Information Act requests. The theory holds that pieces of information that are not in themselves sensitive or potentially injurious to national security can nevertheless be withheld, because in combination (with each other or with other public facts) permit the inference of facts that are sensitive or secret. The “mosaic,” in other words, may be far more than the sum of the individual tiles that constitute it. Leaving aside for the moment the validity of the government’s invocation of this idea in FOIA cases, there’s an obvious intuitive appeal to the idea, and indeed, we see that it fits our real world expectations about privacy much better than the cruder theory that assumes the sum of “public” facts must always be itself a public fact.

Consider an illustrative hypothetical. Alice and Bob are having a romantic affair that, for whatever reason, they prefer to keep secret. One evening before a planned date, Bob stops by the corner pharmacy and—in full view of a shop full of strangers—buys some condoms. He then drives to a restaurant where, again in full view of the other patrons, they have dinner together. They later drive in separate cars back to Alice’s house, where the neighbors (if they care to take note) can observe from the presence of the car in the driveway that Alice has an evening guest for several hours. It being a weeknight, Bob then returns home, again by public roads. Now, the point of this little story is not, of course, that a judicial warrant should be required before an investigator can physically trail Bob or Alice for an evening. It’s simply that in ordinary life, we often reasonably suppose the privacy or secrecy of certain facts—that Bob and Alice are having an affair—that could in principle be inferred from the combination of other facts that are (severally) clearly public, because it would be highly unusual for all of them to be observed by the same public. Even more so when, as in Maynard, we’re talking not about the “public” events of a single evening, but comprehensive observation over a period of weeks or months. One must reasonably expect that “anyone” might witness any of such a series of events; it does not follow that one cannot reasonably expect that no particular person or group would be privy to all of them. Sometimes, of course, even our reasonable expectations are frustrated without anyone’s rights being violated: A neighbor of Alice’s might by chance have been at the pharmacy and then at the restaurant. But as the Supreme Court held in Kyllo v US, even when some information might in principle be possible to obtain public observation, the use of technological means not in general public use to learn the same facts may nevertheless qualify as a Fourth Amendment search, especially when the effect of technology is to render easy a degree of monitoring that would otherwise be so laborious and costly as to normally be infeasible.

Now, as Orin Kerr argues at the Volokh Conspiracy, significant as the particular result in this case might be, it’s the approach to Fourth Amendment privacy embedded here that’s the really big story. Orin, however, thinks it a hopelessly misguided one—and the objections he offers are all quite forceful. Still, I think on net—especially as technology makes such aggregative monitoring more of a live concern—some kind of shift to a “mosaic” view of privacy is going to be necessary to preserve the practical guarantees of the Fourth Amendment, just as in the 20th century a shift from a wholly property-centric to a more expectations-based theory was needed to prevent remote sensing technologies from gutting its protections. But let’s look more closely at Orin’s objections.

First, there’s the question of novelty. Under the mosaic theory, he writes:

[W]hether government conduct is a search is measured not by whether a particular individual act is a search, but rather whether an entire course of conduct, viewed collectively, amounts to a search. That is, individual acts that on their own are not searches, when committed in some particular combinations, become searches. Thus in Maynard, the court does not look at individual recordings of data from the GPS device and ask whether they are searches. Instead, the court looks at the entirety of surveillance over a one-month period and views it as one single “thing.” Off the top of my head, I don’t think I have ever seen that approach adopted in any Fourth Amendment case.

I can’t think of one that explicitly adopts that argument. But consider again the Kyllo case mentioned above. Without a warrant, police used thermal imaging technology to detect the presence of marijuana-growing lamps within a private home from a vantage point on a public street. In a majority opinion penned by Justice Scalia, the court balked at this: The scan violated the sanctity and privacy of the home, though it involved no physical intrusion, by revealing the kind of information that might trigger Fourth Amendment scrutiny. But stop and think for a moment about how thermal imaging technology works, and try to pinpoint where exactly the Fourth Amendment “search” occurs. The thermal radiation emanating from the home was, well… emanating from the home, and passing through or being absorbed by various nearby people and objects. It beggars belief to think that picking up the radiation could in itself be a search—you can’t help but do that!

When the radiation is actually measured, then? More promising, but then any use of an infrared thermometer within the vicinity of a home might seem to qualify, whether or not the purpose of the user was to gather information about the home, and indeed, whether or not the thermometer was precise enough to reveal any useful information about internal temperature variations within the home. The real privacy violation here—the disclosure of private facts about the interior of the home—occurs only when a series of very many precise measurements of emitted radiation are processed into a thermographic image. To be sure, it is counterintuitive to describe this as a “course of conduct” because the aggregation and analysis are done quite quickly within the processor of the thermal camera, which makes it natural to describe the search as a single act: Creating a thermal image. But if we zoom in, we find that what the Court deemed an unconstitutional invasion of privacy was ultimately the upshot of a series of “public” facts about ambient radiation levels, combined and analyzed in a particular way. The thermal image is, in a rather literal sense, a mosaic.

The same could be said about long-distance spy microphones: Vibrating air is public; conversations are private. Or again, consider location tracking, which is unambiguously a “search” when it extends to private places: It might be that what is directly measured is only the “public” fact about the strength of a particular radio signal at a set of receiver sites; the “private” facts about location could be described as a mere inference, based on triangulation analysis (say), from the observable public facts.

There’s also a scope problem. When, precisely, do individual instances of permissible monitoring become a search requiring judicial approval? That’s certainly a thorny question, but it arises as urgently in the other type of hypothetical case alluded to in Knotts, involving “dragnet” surveillance of large numbers of individuals over time. Here, too, there’s an obvious component of duration: Nobody imagines that taking a single photograph revealing the public locations of perhaps hundreds of people at a given instant constitutes a Fourth Amendment search. And just as there’s no precise number of grains of sand that constitutes a “heap,” there’s no obvious way to say exactly what number of people, observed for how long, are required to distinguish individualized tracking from “dragnet” surveillance. But if we anchor ourselves in the practical concerns motivating the adoption of the Fourth Amendment, it seems clear enough that an interpretation that detected no constitutional problem with continuous monitoring of every public movement of every citizen would mock its purpose. If we accept that much, a line has to be drawn somewhere. As I recall, come to think of it, Orin has himself proposed a procedural dichotomy between electronic searches that are “person-focused” and those that are “data-focused.” This approach has much to recommend it, but is likely to present very similar boundary-drawing problems.

Orin also suggests that the court improperly relies upon a “probabilistic” model of the Fourth Amendment here (looking to what expectations about monitoring are empirically reasonable) whereas the Court has traditionally relied on a “private facts” model to deal with cases involving new technologies (looking to which types of information it is reasonable to consider private by their nature). Without recapitulating the very insightful paper linked above, the boundaries between models in Orin’s highly useful schema do not strike me as quite so bright. The ruling in Kyllo, after all, turned in part on the fact that infrared imaging devices are not in “general public use,” suggesting that the identification of “private facts” itself has an empirical and probabilistic component. The analyses aren’t really separate. What’s crucial to bear in mind is that there are always multiple layers of facts involved with even a relatively simple search: Facts about the strength of a particular radio signal, facts about a location in a public or private place at a particular instant, facts about Alice and Bob’s affair. In cases involving new technologies, the problem—though seldom stated explicitly—is often precisely which domain of facts to treat as the “target” of the search. The point of the expectations analysis in Maynard is precisely to establish that there is a domain of facts about macro-level behavioral patterns distinct from the unambiguously public facts about specific public movements at particular times, and that we have different attitudes about these domains.

Sorting all this out going forward is likely to be every bit as big a headache as Orin suggests. But if the Fourth Amendment has a point—if it enjoins us to preserve a particular balance between state power and individual autonomy—then as technology changes, its rules of application may need to get more complicated to track that purpose, as they did when the Court ruled that an admirably simple property rule was no longer an adequate criterion for identifying a “search.” Otherwise we make Fourth Amendment law into a cargo cult, a set of rituals whose elegance of form is cold consolation for their abandonment of function.

I’m still dealing with the statist echo chamber, having been hit with two additional attacks for the supposed sin of endorsing Reaganomics over Obamanomics (my responses to the other attacks can be found here and here). Some guy at the Atlantic Monthly named Steve Benen issued a critique focusing on the timing of the recession and recovery in Reagan’s first term. He reproduces a Krugman chart (see below) and also adds his own commentary.

Reagan’s first big tax cut was signed in August 1981. Over the next year or so, unemployment went from just over 7% to just under 11%. In September 1982, Reagan raised taxes, and unemployment fell soon after. We’re all aware, of course, of the correlation/causation dynamic, but as Krugman noted in January, “[U]nemployment, which had been stable until Reagan cut taxes, soared during the 15 months that followed the tax cut; it didn’t start falling until Reagan backtracked and raised taxes.”

This argument is absurd since the recession in the early 1980s was largely the inevitable result of the Federal Reserve’s misguided monetary policy. And I would be stunned if this view wasn’t shared by 90 percent-plus of economists. So it is rather silly to say the recession was caused by tax cuts and the recovery was triggered by tax increases.

But even if we magically assume monetary policy was perfect, Benen’s argument is wrong. I don’t want to repeat myself, so I’ll just call attention to my previous blog post which explained that it is critically important to look at when tax cuts (and increases) are implemented, not when they are enacted. The data is hardly exact, because I haven’t seen good research on the annual impact of bracket creep, but there was not much net tax relief during Reagan’s first couple of years because the tax cuts were phased in over several years and other taxes were going up. So the recession actually began when taxes were flat (or perhaps even rising) and the recovery began when the economy was receiving a net tax cut. That being said, I’m not arguing that the Reagan tax cuts ended the recession. They probably helped, to be sure, but we should do good tax policy to improve long-run growth, not because of some misguided effort to fine-tune short-run growth.

I’m scratching my head here as I thought the standard pseudo-supply-side line was that the deficit exploded in the 1980’s because government spending exploded. OK, the truth is that the ratio of Federal spending to GDP neither increased nor decreased during this period. Real tax revenues per capita fell which is why the deficit rose but this notion that the burden of government fell is not factually based.

Those are some interesting points, and I might respond to them if I wanted to open a new conversation, but they’re not germane to what I said. In my original post (the one he was attacking), I commented on the “burden of government” rather than the “burden of government spending.” I’m a fiscal policy economist, so I’m tempted to claim that the sun rises and sets based on what’s happening to taxes and spending, but such factors are just two of the many policies that influence economic performance. And with regard to my assertion that Reagan reduced the “burden of government,” I’ll defer to the rankings put together for the Economic Freedom of the World Index. The score for the United States improved from 8.03 to 8.38 between 1980 and 1990 (my guess is that it peaked in 1988, but they only have data for every five years). The folks on the left may be unhappy about it, but it is completely accurate to say Reagan reduced the burden of government. And while we don’t yet have data for the Obama years, there’s a 99 percent likelihood that America’s score will decline.

This is not a partisan argument, by the way. The Economic Freedom of the World chart shows that America’s score improved during the Clinton years, particularly his second term. And the data also shows that the U.S. score dropped during the Bush years. This is why I wrote a column back in 2007 advocating Clintonomics over Bushonomics. Partisan affiliation is not what matters. If we want more prosperity, the key is shrinking the burden of government.

Last but not least, I try to make these arguments to the folks watching MSNBC.

During the past several years, the growth of the Cuban dissident blogger movement has become a major irritant to the Cuban regime. Some bloggers, such as Yoani Sanchez, are becoming well known around the world. Her blog has even been available in English for a few years. I’ve written about her here and Cato published a recent paper by her.

The Cuban blogosphere is vibrant and diverse, but has been available almost exclusively in Spanish. Now, a new English blog site, Translating Cuba, is posting the thoughts of leading Cuban bloggers in Cuba, including Sanchez and recent hunger striker Guillermo Fariñas. Contributors to the site don’t share identical points of view, but they hope that “the voices on this site will mirror the free, open and plural society we all know that Cuba is ultimately destined to be.”